Forcing the innocent to disclose untrue accusations

The Court of Appeal, led by the Master of the Rolls,
published its judgment in the case of Regina
(R) v Chief Constable of Greater Manchester Police & Another a few days
ago.

While the title of the case may have non-lawyers reaching
for the back button to escape a boring legal discussion, I beg you to hold fire
just a moment because this is one of those cases that just might impact on your
life one day.

In Greater
Manchester Police (sorry I’m not typing the whole case name out every time –
maybe I should call it Peter’s case, since that’s the name of the Chief in question…
on second thoughts that’s probably too silly even for me), the court considered
an appeal from the High Court against the dismissal of R’s claim for judicial
review. The Greater Manchester Police
case began when R was accused of rape – he was put on trial and acquitted. For
the moment, we know no more about him or his case than that. We don’t know whether
R was the victim of a false allegation, mistaken identity or something else.
What we do know is that he was acquitted and so is innocent of the crime. We
also know that he applied for a job as a driver, which he appears not to have
got purely because his prospective employer required an enhanced criminal
record certificate, which showed that he had been charged, tried and acquitted
of rape. According to the case reports, we do know that the allegation of rape
was made in connexion with past employment as a driver.

You may be aware that in England and Wales (indeed in all
civilised nations I know of – even the Americas and France) a person is
innocent until proven guilty. This means that when he is found not guilty he
can properly be described as innocent. This has been the situation in E&Ws
for a thousand years or more and, as a gift to Europe, following their numerous
experiments with tyranny, we enshrined that presumption into the European
Convention on Human Rights, in article 6.2.

In 2013, the European Court of Human Rights held that
public officials are not to treat a person as if they are guilty of a crime for
which they have been acquitted (Allen v
United Kingdom). This should be no surprise to any English lawyer where the
plea at Bar of autrefois convict long
pre-dates the ECHR, albeit that the convention rights are far broader.

Given that somebody is innocent unless proven guilty and
that government officials should not treat a person as guilty when they have
been acquitted you might think that telling prospective employers about past
allegations that turned out not to be true might breach article 6.2 and the Allen case. But, not so said the court
of appeal. By the way, while I say it shouldn’t be a surprise, I’m of course
excluding magistrates’ courts where law doesn’t apply and where I once saw a
District Judge refuse to allow a recently acquitted defendant to recover his costs
because “he might still be guilty”!

Their Lordships found that article 6.2 applies only to
public statements by organs of the state and not to private documents such as a
criminal record check. Personally, I find that an odd demarcation line; are the
court seriously suggesting that the police cannot make a public statement about
an individual but can send a private letter to every prospective employer, e.g.
every cab firm or every school, etc in the area, thus preventing him ever
getting a job?

Of course, it’s worth remembering that one of the reasons
criminal record checks exist is because of the Soham murders, in which two
10-year-old girls, Holly Wells and Jessica Chapman were murdered by the caretaker
of a nearby secondary school who would not have got his job had past allegations
against him been disclosed to the school. It’s also worth remembering that his
job was not how he gained access to the girls – that was because they came past
his house and he invited them inside to visit his girlfriend who was their
teaching assistant.

There is a serious discussion to be had about this type
of case. Just where do we strike the balance between liberty and rights of the
wrongly accused and the safety of society. There are some people who say we
should do everything possible to prevent crimes occurring in the first place,
but that way leads to imprisonment for everyone until such time as they can
prove they’re innocent of everything. On the other hand, there are those who
favour everyone taking their own chances in life – my experience of such people
is that they’re the ones most likely to be eaten alive in such a society so I’ve
never really understood where they’re coming from.

Where do we strike the balance? Should a person who is
innocent have the right to have his past trial forgotten or should the local
community be alerted to past accusations, just in case the jury got it wrong,
as my legally challenged District Judge thought? The answer for many people is,
“what if it were your wife or daughter who was raped and could have been saved
had disclosure like this taken place?” That is a lazy argument and easily
contradicted with, “what if it were your father or son whose life were ruined
by a false allegation that followed him around because the police keep telling
everyone about it?”

The Soham Murders present another factor – should we
check the criminal records not only of school staff but of their family who
might come into contact with children (or children’s details) as a result of
their relationship with the staff member?

So, where is the balance to be struck? Buggered if I know
– do you?

What I would hope happens in every case is that somebody
sits down with the application for disclosure, reads it and looks at past
incidents then make a decision as to what is disclosed. What I expect happens
is that an application comes in and they just print off whatever is on the record
and pop it in the post.

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